12 tips to help you avoid disciplinary proceedings

Here is a short article on tips to help you avoid disciplinary proceedings.  The tips are good ones:

1. Implement Strong Law Office Management Procedures

2. Intake Is Critical

3. Client and Third Party Funds and Property Are Sacrosanct 

4. Communicate, Communicate, Communicate

5.   Be Diligent

6. Be Honest

7. Honor Client Confidences

8. The Internet Is Not a Safe Haven

9. Conflicts of Interest Are Real

10. Be Civil and Professional

11. Take the Time to Think It Through

12. Stay Current

Advice for when you realize you made a huge mistake and will likely get sued...

I often tell my torts students that forgetting to file a claim before the statute of limitations runs is possible the dumbest mistake they can make.  "Buy, and more importantly, learn to use a calendar!",  I tell them.

So what happens if the do make that dumb mistake? What happens next?   Here is some good advice.

What do you think should be the proper sanction for this conduct?

I am curious to see what you think should be the appropriate sanction give the following facts (which are taken from an actual case recently decided in Kentucky).

A client pays an attorney $50 to write a letter.  The lawyer takes the money and tells the client he will get it done and call him back.  The attorney does nothing.  The client tries multiple times to reach the lawyer but the lawyer does not call him back.  The client complains to Bar Counsel.  Bar Counsel calls the lawyer and lawyer says he inadvertently overlooked the matter.  (There is no explanation as to how he inadvertently also failed to call the client back after multiple requests.)  Lawyer promises Bar Counsel that he will do the work and get in touch with client. The lawyer then does nothing, doesn't contact the client and keeps the money.  The client tries to contact the lawyer; the lawyer does not reply.  Bar Counsel calls the lawyer; lawyer does not call back.

Bar Counsel then files a formal complaint and sends it to the lawyer.  The lawyer signs for it when delivered.  Lawyer does not reply to the complaint; does not reply to a second letter reminding him to reply to the complaint.  The complaint was processed and the charges entered.  The attorney was notified, but, again, did not reply or do anything about it.

After all that, a 20 member board found the attorney in violation of at least 4 rules (20 to 0 vote). 

Now, here is the question:  what is the best way to handle this type of conduct?

The Court issued a 30 day suspension.

I understand that, given that the attorney did not participate in the proceeding, we can't determine the reason for his conduct (Is he simply disorganized or is he incompetent?  Is he unfit to practice or just negligent?  Is he disabled in some way?).

I understand that without more information, a stronger sanction may be unfair.  We really can't determine if maybe the attorney should not be allowed to practice...  But what is the alternative?  If nothing is done about this, lawyers could avoid facing severe consequences for their conduct by simply blowing off the process.

If I had been in a position to decide this case I would have imposed a much harsher sanction.  The attorney clearly knew what he was doing was wrong.  He had been told by Bar Counsel.  He committed to correct the initial mistake but decided not to.  He clearly knew a disciplinary process against him was under way.  I would have interpreted his conduct as either so incompetent that it raised doubts as to his ability to practice or as evidence that he simply did not care - did not care about his client, about doing his job, about acting professionally or ethically, and about the process.  Either way, my conclusion would have been that he needed to be punished severely.  And if I were Bar Counsel, I'd check to make sure the attorney is not practicing during his suspension.

How not to practice law: show up drunk

Here is an easy multiple choice question: when representing a client, a lawyer should show up (a) sober or (b) drunk. If you picked 'a' .... Ding, ding, ding! We've got a winner. Generally speaking, that is the way to practice law, wouldn't you say?.... But since this is an entry in our on-going how NOT to practice law series, you know what's coming....

An Indiana attorney has been suspended for six months without automatic reinstatement as a result of an incident in which the attorney appeared at the Child Advocacy Center for a police interview with a juvenile client while intoxicated. Go here for the opinion. Go here for more on the story.

Unfortunately, this is not the first time we have seen this type of conduct. Here is a must see video of an attempt by a judge to determine if a lawyer is drunk when he appeared in court to represent a criminal defendant client: part 1 (5 minutes), part 2 (9 minutes), part 3 (9 minutes), part 4 (10 minutes)

Himmel in trouble again

Back in March I reported a hearing board filed an opinion recommending to suspend James Himmel, the protagonist of In Re Himmel, the famous case about the duty to report another lawyer's misconduct, for 30 days because of his neglect of a client's case. See here.

The Legal Profession Blog is reporting today (here) that the Review Board has adopted the recommendation. The opinion is available here.

Don't take more work than you can handle

The New York Appellate Division for the First Judicial Department has imposed a three month suspension in a matter involving two instances of client neglect. The opinion is available here.

In a way this case is nothing other than another example of a lawyer trying to handle more work than he was capable of. What is interesting about this particular case, though, is that the court makes a point of saying that the lawyer actually meant well. His intentions were, in fact, very good:

". . . respondent, although taking on matters that he was not prepared to handle, sought to assist members of his community who did not have access to appropriate legal assistance and/or did not have the funds to procure such assistance. His motives and intentions were clearly those of a person who sought to do good deeds. In many cases he took on matters without compensation, hoping that eventually he would be able to resolve the matters to the benefit of his clients. However, he often lacked the expertise and finances to attain these goals."

What is important, then, is to remember that it does not matter if your intentions are good. You simply can't run your practice in a way that neglects your clients. If you have too much work, you need to find a way to get it under control.

Thanks to the Legal Profession blog for the information.

Statute of limitations mistake results in disciplinary sanctions

Mike Frisch of the Legal Profession Blog wrote today on a case in which the Tennessee Supreme Court affirmed a five month suspension imposed on an attorney for engaging in negligent conduct. The attorney missed the statute of limitations deadline for filing a personal injury suit. When I teach Torts, I tell my students this is one of the dumbest mistakes an attorney can make and I tell them it is a common basis for malpractice suits. I can now tell them it can also result in disciplinary sanctions. I knew that was true before, but my sense (which could be wrong since I am not following every single sanctions case out there) is that courts do not typically impose disciplinary sanctions for single instances of purely negligent conduct.

Himmel in trouble again

James Himmel, the protagonist of In Re Himmel, the famous case about the duty to report another lawyer's misconduct, is in trouble again. A hearing board filed an opinion today recommending his suspension for 30 days because of his neglect of a client's case. Himmel admitted that he "failed to act with reasonable diligence and promptness in representing the [clients] in violation of Rule 1.3 of the Illinois Rules of Professional Conduct" since he "failed to perform any legal services on behalf of [them]." He admitted that he did not open and review correspondence between himself and the clients, that he did not respond to the clients’ many requests for information and that he allowed the statute of limitations pass on the clients' claim without diligent representation. The opinion is available here.

Thanks to LegalProf blog for the information.